2. Services Usage and Restrictions
2.1 Our License to Professional Customers
(a) Ownership of the Services, Documentation, and Company Data
We own and will continue to own our Services and Documentation, including all related intellectual property and other proprietary rights related thereto. Further, the Customer acknowledges and agrees that we may collect data relating to the Customer’s and its Authorized Users’ usage of the Services, including but not limited to contact information, office addresses, and general business information (“Usage Data”) and collect, analyze, and use data derived from User Content that has been aggregated and/or anonymized such that it does not identify the Customer or any identifiable individual person (“Derivative Data” and, collectively with Usage Data, “Company Data”). All Company Data will be owned solely and exclusively by us and, for purposes of clarity, you agree that we may use the Company Data in perpetuity for any purpose permitted by applicable law.
We may, from time to time, make available certain third-party products and services, including but not limited to open source software (“Third-Party Products”) for use in connection with the Services. Such Third-Party Products may be made available under separate or additional terms and conditions, including but not limited to open source licenses, which we will make available to you as necessary.
(b) Licenses to the Services and Documentation
During the Subscription Period, we grant the Customer a non-exclusive, non-transferable license to access and use, and to permit Authorized Users to access and use the Services, in accordance with the Agreement, for the Customer 's own internal business purposes. The Customer may, during the Subscription Period, access and use certain end user contact information provided to you through the Services solely for purposes of responding to an Inquiry as contemplated by these Terms.
To the extent that we may make downloadable software components available, via app stores or other channels, as part of the Services, During the Subscription Period, we grant to the Customer a non-sublicensable, non-transferable, non-exclusive, limited license for the Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services. Minor updates, bug fixes, and the like to such downloadable software components will be included under this license for the duration of the subscription.
From time to time we may make available product documentation for the Services (the “Documentation”) via a method of our choosing (e.g., via the Services). During the Subscription Period, we grant to the Customer a non-sublicensable, non-transferable, non-exclusive, limited license for the Customer and its Authorized Users to use the Documentation to support the Customer’s and its Authorized Users’ use of the Services.
All rights and licenses granted herein are subject to you and your Authorized Users’ full compliance with all the terms and conditions of the Agreement. All rights in the Services and Documentation not expressly granted herein are expressly reserved by us.
2.2 Professional Customer’s Licenses to Us
(a) Ownership of Customer Content
As between us on the one hand, and the Customer and any Authorized Users on the other, the Customer will own all Customer Content, including, for purposes of clarity, Personal Data and User Content.
(b) License to Personal Data
Subject to the terms and conditions of the Agreement, the Customer (for itself and all of its Authorized Users) grants us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Personal Data, only as reasonably necessary (a) to provide and maintain the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by the Customer. The Customer represents and warrants that it has secured all rights in and to Personal Data from its Authorized Users or any third parties as may be necessary to grant this license.
Notwithstanding the foregoing, the Customer agrees that we may collect, analyze, use and disclose, during or after the Subscription Period, data derived from Personal Data, which is anonymized and/or aggregated in a manner, that makes the identification of the Customer or any Authorized User or third party impossible, for any business purpose, including without limitation, to operate, analyze, improve, and market the Services and our other products and services and share such anonymized data with our affiliates and business partners. The Customer further agrees that we will have the perpetual right to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of such derived data.
(c) License to User Content
With respect to that portion of Customer Content that consists of images, comments, questions, documents, and any other content submitted, posted, or otherwise made available by the Customer and its Authorized Users through the Services (“User Content”), by submitting, posting, storing, or otherwise making such User Content available through the Services, the Customer grants, and represents and warrants that it has all rights necessary to grant (including without limitation any necessary consents and authorizations from individual persons identified in the User Content and licenses from third-parties whose content is included in the User Content), to us a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, host, store, reproduce, modify, publish, list information regarding, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content, and the names, voice, and/or likeness contained in the User Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, solely for use in connection with our provision of the Services as described in the Agreement and our product documentation.
To the extent permitted under applicable law, we take no responsibility and assume no liability for any User Content that the Customer or any Authorized User or third-party submits, posts, or otherwise makes available through the Services. As between the Customer and us, the Customer shall be fully responsible for the User Content and the consequences of submitting, posting, or otherwise making it available via the Services, and the Customer acknowledges and agrees that we are acting only as a passive conduit for the Customer’s and its Authorized Users’ online distribution of such User Content.
2.3 Responsibilities for Professional Content
You represent and warrant that you are a registered investment advisor in your respective state(s) or through the U.S. Securities and Exchange Commission. We are not responsible for the content of any Customer Content or the way the Customer or its Authorized Users choose to use the Services to store or process any Customer Content. The Customer represents and agrees that the Customer is solely responsible for (i) providing notices and obtaining consents as legally required from its Authorized Users for the collection, use, processing and transfer of Customer Content in connection with the Services; and (ii) ensuring compliance with all laws in all jurisdictions that may apply to Customer Content provided hereunder, including but not limited to all applicable international, federal, state, provincial and local laws, rules, and regulations relating to data privacy and security. Unless otherwise agreed to in writing, the Customer may not submit any Customer Content that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, or any other information which may be subject to specific data privacy and security laws including, but not limited to, the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HiTECH), the Family Educational Rights and Privacy Act of 1974 (FERPA), the Children's Online Privacy Protection Act (COPPA),or the GDPR or any other data which is considered to be sensitive or which could give rise to notification obligations under data breach notification laws. We do not make any representations as to the adequacy of the Service to process your Customer Content or to satisfy any legal or compliance requirements which may apply to your Customer Content, other than as described herein. The Customer and any of its Authorized Users may not upload contact information or other consumer information for any users that were not obtained through an Inquiry.
2.4 Use of the Services
The Customer must comply with the Agreement and ensure that its Authorized Users comply with the Agreement. We may review conduct for compliance purposes, but we have no obligation to do so. If we believe there is a violation of the Agreement that can be remedied by the Customer’s removal of certain Customer Content, we will, in most cases, ask the Customer to take direct action rather than intervene. However, to the extent legally permissible, we reserve the right to take further appropriate action, when we deem it reasonably appropriate if the Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.
2.5 Acceptable Use
(a) Technical Restrictions
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the servers hosting the Services than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; or (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein.
Accessing any audio-visual content that may be available on the Services for any purpose or in any manner other than Streaming is expressly prohibited unless explicitly permitted by the functionality of the Services. “Streaming” means a contemporaneous digital transmission of an audio-visual work via the Internet from the Services to an Authorized User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the Authorized User.
(b) Customer Content Restrictions
You are solely responsible for the content of any Customer Content you submit through the Services. You agree not to submit any Customer Content, including but not limited to any User Content, that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (viii) contains any information or content that you know is not correct and current; or (ix) to the extent applicable, violates any school or other applicable policy, including those related to cheating or ethics.
You agree that any Customer Content that you submit does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. To the extent legally permissible, we reserve the right, but are not obligated, to reject and/or remove any User Content that we believe, in our sole discretion, violates any of these provisions. You understand that publishing your User Content on the Services is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
3. Payment Obligations
3.1 Payment Terms
For Customers that purchase a subscription to use our Services, fees are specified through your online account — and must be paid in advance. Payment obligations are non-cancellable once incurred subject to your cancellation rights in these Terms. Except as expressly stated in the Agreement, fees paid are non-refundable. For clarity, in the event the Customer downgrades any subscriptions or other recurring fees, the Customer will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial Subscription Period. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income.
3.2 Billing Policies
If you elect to purchase a subscription to use our Services, or any other paid aspects of the Services (including but not limited to Locations, Credits and Monthly Credit Payments), the Customer agrees to the pricing communicated to you by us. We may add new services for additional fees and charges or add or amend fees and charges for existing services, at any time in our sole discretion, by giving to the Customer at least thirty (30) calendar days' written notice, such increase to take effect at the beginning of the next billing cycle. If the Customer is unhappy with the increase, the Customer may give notice to terminate the Agreement, by giving at least thirty (30) calendar days' written notice to us prior to the next billing date, such notice to expire no later than the end of the then-current billing cycle. The fees will not increase during the notice period; otherwise, any change to such pricing shall become effective in the billing cycle following notice of such change as provided under the Agreement.
3.3 Billing and Cancellation
To use the Services, you must provide one or more current, valid accepted -payment card, as may be updated from time to time and which may include payment through your account with a third party (such method, a “Payment Method”). By providing a Payment Method, you agree that we or our Payment Processor (defined below) are authorized to periodically charge the applicable fees in addition to any applicable taxes and service fees on a recurring basis until you cancel your subscription, Monthly Credit Payments, or other such recurring fees. The fees for the Services and any other charges you may incur in connection with your use of the Services, such as taxes and possible transaction fees, will be charged to your Payment Method on the specific payment date indicated on your account. The length of your billing cycle will depend on the type of subscription that you choose when you signed up for the Services. Fees are fully earned upon payment. In some cases, your payment date may change, for example, if your Payment Method has not successfully settled, when you change your subscription plan or if your paid subscription began on a date not contained in a given month. Visit our website and click on the “Billing details” link on the Account page to see your next payment date. We may authorize your Payment Method in anticipation of service-related charges through various methods, including authorizing it up to one month of service as soon as you register.
3.4 Payment Information
We use a third-party payment processor (“Payment Processor”), currently Elavon Financial Services DAC, doing business as Opayo, at opayo.co.uk, to process payments you make in connection with the Services. Unbiased or our Payment Processor will attempt to verify the Payment Method you provide, and may do so by processing an authorization hold, which is standard practice. Please see Payment Processor’s privacy statement available on its website for information on how Payment Processor collects and uses personal information. Payment must be received by Payment Processor before our acceptance of an order and must use one of the payment methods accepted by the Payment Processor. We do not view or store your full credit card or other Payment Method information. For all payments, Payment Processor will collect your Payment Method details and charge your chosen Payment Method in connection with an order. You acknowledge and agree that we are not responsible for any breaches of credit card or other Payment Method security or privacy.
You represent and warrant that: (a) the account, order, and Payment Method information you supply to us or Payment Processor, as applicable, is true, correct, and complete; (b) you are duly authorized to use such Payment Method; (c) you will pay any charges that you incur in connection with the Services, including any applicable taxes; (d) charges incurred by you will be honored by your Payment Method company; (e) you will pay all charges incurred by you at the posted prices, including all applicable taxes, if any; (f) you will not allow anyone else to use your subscription; (g) you will not transfer your subscription or password to anyone else; and (h) you will report to us any unauthorized or prohibited access or use of your subscription or password.
If any of your account, order, or Payment Method information changes, you agree to promptly update this information, so that we or Payment Processor may complete your transactions and contact you as needed. We are not liable for any unauthorized use of your credit card, debit card, or other Payment Method by a third-party in connection with your use of the Services or your subscription.
3.5 Cancellation
Monthly Subscriptions are subject to a minimum 6 month term.
YOU CAN CANCEL YOUR SUBSCRIPTION AT ANY TIME BY PROVIDING US WITH AT LEAST THIRTY (30) CALENDAR DAYS NOTICE PRIOR TO YOUR NEXT SUBSCRIPTION BILLING OF YOUR INTENT TO CANCEL. YOU MUST CANCEL YOUR SUBSCRIPTION BEFORE IT RENEWS IN ORDER TO AVOID BEING CHARGED FOR THE NEXT CYCLE’S FEES.
If you cancel your subscription, the cancellation will become effective at the end of the then-current Subscription Period and you will continue to have access to your subscription through your account. If you cancel your subscription, we will retain your information in accordance with our Privacy Policy.
3.6 Refunds
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS, UNLESS REQUIRED BY APPLICABLE LAW, WE DO NOT PROVIDE REFUNDS FOR ANY SUBSCRIPTION OR LOCATIONS; NOR DO WE PROVIDE CREDIT, REFUNDS, OR PRORATED BILLING FOR SUBSCRIPTIONS THAT ARE CANCELLED.
4. Term and Termination
4.1 Agreement Term
As further described below, a subscription continues until terminated, but in any event any Subscription Period will persist for a minimum of six (6) calendar months from the start of the subscription. The Agreement remains effective until all subscriptions ordered under the Agreement have expired or been terminated or the Agreement itself terminates. Termination of the Agreement will terminate all subscriptions.
4.2 Auto-Renewal
All subscriptions automatically renew for additional periods equal to one (1) year or the preceding Subscription Period, whichever is shorter. The per-unit pricing during any automatic renewal Subscription Period will be the then-current price communicated to you by us. Either party can give the other notice of non-renewal at least thirty (30) calendar days before the next billing date during the Subscription Period to stop a subscription from automatically renewing.
4.3 Termination for Cause
We or the Customer may terminate the Agreement on notice to the other party if the other party materially breaches the Agreement and such breach is not cured within ten (10) calendar days after the non-breaching party provides notice of the breach. The Customer is responsible for its Authorized Users, including for any breaches of the Agreement caused by its Authorized Users. We may terminate the Agreement immediately on notice to the Customer if we reasonably believe that the Services are being used by the Customer or its Authorized Users in violation of applicable law or regulations.
4.4 Termination Without Cause
The Customer may terminate its subscriptions immediately without cause subject to the thirty (30) calendar days written notice period. We may also terminate the Agreement without cause, but we will provide the Customer with thirty (30) calendar days prior written notice.
4.5 Your Account Following Termination or Expiration
Upon termination or expiration of your subscription, at our absolute discretion, you may still have access to your account and information. Unbiased may remove certain User Content, but may allow your profile to continue appearing for end users. Without an active subscription, you may not receive or purchase any Inquiries or any Locations. At our absolute discretion, you may still be able to log into your account to use the Services solely to the extent such Services are limited to Inquiries which you have already purchased pursuant to these Terms. You may request that Unbiased permanently disable your account at any time by emailing [email protected] or by following the directions contained on your user account.
4.6 Effect of Termination
Upon any termination for cause by the Customer, we will refund the Customer any prepaid fees covering the remainder of the Subscription Period after the effective date of termination. Upon any termination for cause by us, the Customer will pay any unpaid fees covering the remainder of the Subscription Period after the effective date of termination. In no event will any termination relieve the Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
5. Copyright Policy
Since we respect artist and content owner rights, it is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify our copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
Identification of the copyrighted work that you claim has been infringed;
Identification of the material that is claimed to be infringing and where it is located on the Service;
Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, e-mail address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following email address: [email protected]
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying us and our affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the Customer s and Authorized Users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Services and/or terminate subscriptions of any Customer or Authorized User who infringes any intellectual property rights of others, whether or not there is any repeat infringement.
6. Representations; Disclaimer of Warranties
The Customer represents and warrants that (i) it has validly entered into the Agreement and has the legal power to do so; (ii) that it is responsible for the conduct of its Authorized Users and their compliance with the terms of the Agreement; (iii) that it is an SEC-registered investment advisor and complies with all applicable federal and state laws, rules and regulations, concerning investment advisors and will remain compliant during the Subscription Period. UNBIASED DOES NOT REPRESENT OR WARRANT THAT ANY INQUIRIES WILL RESULT IN ACTUAL BUSINESS OPPORTUNITIES, AND CUSTOMER AND ITS AUTHORIZED USERS ACKNOWLEDGE AND AGREE THAT THERE IS NO GUARANTEE THAT USE OF THE SERVICES WILL RESULT IN FUTURE BUSINESS OPPORTUNITIES. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. WE MAKE NO WARRANTY THAT THE WEBSITE, AND/OR SERVICES WILL MEET YOUR REQUIREMENTS; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR SERVICES, OR THAT DEFECTS IN THE WEBSITE OR SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY CONTENT OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SERVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR INFORMATION. NO CONTENT, ADVICE, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE WEBSITE OR SERVICES, OR OTHERWISE WILL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
7. Limitation of Liability
IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION ABOVE.
IN NO EVENT WILL WE HAVE ANY LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE WEBSITE AND THE SERVICES.
The Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to the Customer, Authorized Users, or anyone else, if such information is not kept confidential by the Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services. You should not share your login credentials with anyone else.
The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under the Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into the Agreement and the pricing for the Services.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8. Indemnification
The Customer agrees to defend, indemnify and hold harmless us and our affiliates, licensors, and suppliers, and our and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) the Customer’s and any Authorized User’s use of and access to the Services, including any the Customer Content or other content transmitted or received by the Customer or any Authorized User; (b) your violation of any term of the Agreement, including without limitation any breach of the Customer’s representations and warranties above; (c) the Customer’s or any Authorized User’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) the Customer’s or any Authorized User’s violation of any applicable law, rule or regulation; (e) Customer Content or any content that is submitted via the Customer’s or any Authorized User’s account, including without limitation misleading, false, or inaccurate information; (f) the Customer’s or any Authorized User’s gross negligence, fraud, or willful misconduct; or (g) any other party’s access and use of the Services with the Customer’s or any Authorized User’s unique username, password or other appropriate security code (provided that such access and use was not our fault).
9. Confidentiality
9.1 Definition
Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, as well as non-public business, product, technology, and marketing information. Confidential Information of the Customer includes Customer Content. If something is labelled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party. For clarity, all information arising from or related to Inquiries, including but not limited to contact information provided by end users, will be considered the Confidential Information of Unbiased.
9.2 Protection and Use of Confidential Information
The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Agreement; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Agreement.
9.3 Compelled Access or Disclosure
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
10. Miscellaneous
10.1 Publicity
During the Subscription Period, you agree to provide Unbiased with a limited, royalty-free, nonsublicenseable, revocable, license to use your name and logo in connection with the Services, and to feature your name and logo on our website in connection with the promotion of the Services.
10.2 Third Party Products, Links, and Information
The Services may integrate with, or contain, third party products, services, materials, or information, or links thereto that are not owned or controlled by us (“Third Party Materials”). We do not endorse or assume any responsibility for any such Third Party Materials. If the Customer or any Authorized User accesses any third party website or service, it does so at its own risk, and the Customer acknowledges and agrees that the Agreement and our Privacy Policy do not apply to the Customer or any Authorized User’s use of such sites or services. the Customer expressly relieves us from any and all liability arising from its or its Authorized User’s use of any Third Party Materials.
10.3 Force Majeure
Neither us nor the Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
10.4 Relationship of the Parties; No Third Party Beneficiaries
The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third party beneficiaries to the Agreement; a person who is not a party to the Agreement may not enforce any of its terms under any applicable law.
10.5 Email Communications
Except as otherwise set forth herein, all notices under the Agreement will be by email, although we may instead choose to provide notice to the Customer through the Services. Notices to us must be sent to [email protected]. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.
10.6 Modifications
We may change these Terms and the other components of the Agreement in accordance with this Section. If we make a material change to the Agreement, we will provide the Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with the Customer’s account or by messaging the Customer through the Services. The Customer can review the most current version of the Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Agreement. The materially revised Agreement will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If the Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute the Customer’s acceptance of any revised terms and conditions.
10.7 Waivers
No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
10.8 Severability
The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.
10.9 Assignment
Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign the Agreement in its entirety without consent of the Customer, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this section is void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.10 Governing Law
You agree that: (i) we will be deemed solely based in the State of New York; and (ii) our Service will be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than New York. These Terms will be governed by the internal substantive laws of New York, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement in Section 10.12 and preempts all state laws to the fullest extent permitted by law. If the FAA is determined to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in New York for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration Agreement below, including any provisional relief required to prevent irreparable harm. You agree that New York is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
10.11 Venue; Waiver of Jury Trial; Fees
The state and federal courts located in New York will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision below is found In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED OUR SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND WE AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER USERS. YOU AND WE AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
10.12 Arbitration
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. This section 10.12 (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and us that arises out of or relates to, directly or indirectly: (a) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of our Service, including receipt of any advertising, marketing, or other communications from us; (c) any transactions through, by, or using our Service; or (d) any other aspect of your relationship or transactions with us, directly or indirectly, as a user or consumer (“Claim” or collectively, “Claims”). The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your consent to these Terms. If you are a new User, you can reject and opt-out of this Arbitration Agreement within thirty (30) calendar days of accepting these Terms by emailing us at [email protected] with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Opting out of this Arbitration Agreement does not affect the binding nature of any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought. For any Claim, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a Claim after sixty (60) calendar days, we each agree to resolve any Claim through binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS (the “Rules”), except as provided herein. JAMS may be contacted at www.jamsadr.com, where the Rules are available. In the event of any conflict between the Rules and this Arbitration Agreement, the Arbitration Agreement shall control. The arbitration will be conducted in the U.S. county where you live or New York , unless you and we agree otherwise. If you are using our Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator will include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using our Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and we agree that the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms, or any provision of these Terms, is unconscionable or illusory or any defence to arbitration, including waiver, delay, laches, unconscionability, or estoppel. NOTHING IN THIS SECTION WILL BE DEEMED AS: PREVENTING US FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS; OR PREVENTING YOU FROM ASSERTING CLAIMS IN SMALL CLAIMS COURT, IF YOUR CLAIMS QUALIFY AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND ADVANCES ON ONLY AN INDIVIDUAL (NON-CLASS, NON-COLLECTIVE, AND NON-REPRESENTATIVE) BASIS. If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
10.13 Entire Agreement
The Agreement, including these Terms and all referenced pages, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Agreement supersedes the terms of any online agreement electronically accepted by the Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in these Terms and any other documents or pages referenced in these Terms, the following order of precedence will apply: (1) these Terms; and (2) any other documents or pages referenced in these Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation will be incorporated into or form any part of the Agreement, and all such terms or conditions will be null and void.
10.14 Survival
Any section of the Agreement that, by its terms or its nature, should survive the termination or expiration of the Agreement shall so survive, including but not limited to Sections 1.4, 2.2, 2.3, 3, 4.5, and 5 through 11.
10.15 Contacting Us
Please also feel free to contact us if you have any questions about the Terms or any other part of the Agreement. You may contact us at [email protected] or at our mailing address set forth in Section 5 above.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
